Judge: ‘There is a gaping hole in the current regulatory landscape for ‘natural’ claims and GMOs’

San Francisco resident Elizabeth Cox alleges that 'all-natural' claims on Mission tortilla triangles and other products are false and misleading because they contain GMOs in the form of corn and/or corn derivatives

A federal judge handling a lawsuit filed in California over ‘all-natural’ claims on Mission tortilla chips has recommended that the case be put on hold for six months to give the FDA time to determine whether products containing GMOs should be labeled ‘natural’.

In a “tentative ruling” on a case filed by Elizabeth Cox vs Gruma Corporation over ‘all-natural’ claims on Mission tortilla chips, judge Yvonne Gonzalez Rogers agreed with the plaintiff that there is a “gaping hole in the current regulatory landscape for ‘natural’ claims and GMOs”.

Judge recommends putting lawsuit on ice to give FDA time to decide if GMOs belong in ‘all-natural’ products

However,she disagreed with Cox’s claims that this matter would be best decided by a jury in California, adding that “deference to the FDA’s regulatory authority is the appropriate course”.

Therefore, she added, “the court is inclined to order that this action be stayed for six months and referred to the FDA for determination of whether products containing GMO or bioengineered ingredients may properly be labeled ‘natural’ or ‘all natural’.”

Plaintiff: The FDA has repeatedly declined to define or clarify the term ‘natural’

The move came as a surprise to some commentators, given that several judges handling similar cases in California have recently argued that primary jurisdiction is not applicable and that the FDA is unlikely to come up with a legal definition of ‘natural’ anytime soon.

Meanwhile, Cox’s lawyers argued that the “FDA has repeatedly declined to define orclarify the term ‘natural’ when asked to do so”.

Cox’s lawyers - at legal firm Milstein & Adelman, LLP, added: “A stay of this case for six months is not necessary.

“The Court should enter an Orderdenying the Motion to Dismiss because the FDA has repeatedly declined to define orclarify the term ‘natural’ when asked to do so, and courts across the country have declined toapply the primary jurisdiction doctrine as a direct result of the FDA’s inaction on this veryissue.”

During a hearing on June 11, the court did not issue a ruling, but instead asked for additional briefings from both parties.

CSPI: The FDA has repeatedly affirmed that it's not going to deal with this issue any time soon

The issue of whether GMOs belong in ‘all-natural’ products - which is at the center of a growing number of class action lawsuits against big food brands - has also featured heavily in the recent debate over GMO labeling. For example, some state-led GMO labeling initiatives stipulate that products containing GMOs should not be labeled as ‘natural’.

Stephen Gardner, director of litigation at the Center for Science in the Public Interest (CSPI), which has sued scores of food and beverage giants over allegedly false and misleading claims, told FoodNavigator-USA that waiting for six months would not help matters.

“I'm familiar with this tentative decision, and don't agree with it”, he said.

The CSPI has “dealt with this exact issue before, most recently in our case against General Mills [over natural claims on Nature Valley bars]”, he added

And in the Gen Mills case, he pointed out, the judge said it would be “futile” to refer the issue to the FDA given that there is no legal definition of natural, and the FDA is unlikely to come up with one anytime soon.

He added:“The FDA has repeatedly affirmed that it's not going to deal with this issue any time soon.”

Another legal source told FoodNavigator-USA that similar attempts a couple of years ago to get the FDA to come to a firm decision on whether high fructose corn syrup (HFCS) could be labeled as ‘natural’ did not get anywhere, and as such, moves to stay these cases just meant that they dragged on even longer.

Hopefully the FDA will weigh in

A third source told us that there are class actions currently pending against about a dozen companies for labeling their products as 'natural' when they allegedly contain GM ingredients, but that this is the first to accept primary jurisdiction as grounds to stay.

The source said: "Hopefully the FDA will weigh in. If not, these GMO/natural suits could continue to be filed against almost any packaged good company.

"Another important ground for dismissal of these types of cases, which was not really cited by Gruma, is that no California consumer could reasonably believe that 'natural' means GM-free in light of California’s Prop 37, which would have prohibited foods with GM ingredients from being labeled 'natural' and was rejected by voters."

The FDA’s position on natural claims and GMO labeling

In 2001, the FDA said it was not aware of any data or other information that would form a basis for concluding that the fact that a food or its ingredients was produced using bioengineering is a material fact that must be disclosed on food labels

With respect to the use of the term ‘natural’ on food labels, the FDA published non-binding guidance in 1993 saying natural means that “nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food”.

But this did not clarify the status of foods containing HFCS, GMOs and a raft of other ingredients that many stakeholders believe do not belong in a product labeled as ‘all-natural’.

As for GMOs, in a guidance document you can read here
, the agency says it “not aware of any data or other information that would form a basis for concluding that the fact that a food or its ingredients was produced using bioengineering is a material fact that must be disclosed [on food labels]. FDA is therefore reaffirming its decision to not require special labeling of all bioengineered foods.”

The complaint (Cox v. Gruma Corporation, No. 12-6502) was filed on December 21, 2012, by Elizabeth Cox, who argued that Gruma had made “false and misleading statements that are likely to deceive reasonable consumers” by describing Mission Tortilla chips as ‘all natural’, “when in fact they are not because they contain GMOs in the form of corn and/or corn derivatives”.

A federal judge handling a lawsuit filed in California over ‘all-natural’ claims on Mission tortilla chips has recommended that the case be put on hold for six months to give the FDA time to determine whether products containing GMOs should be labeled ‘natural’.

6 comments(Comments are now closed)

What a Shame!

There doesn't seem to be even one government agency working to protect the USA citizens. I only buy with the non-GMO label and don't put much stock in the "Natural" labeling anymore. In addition, I became GF and soy free because of the overuse in our foods. It is causing illness and disease for the majority.

Our food sources are not safe and yet it is like the government is leading us to a poisoned watering hole!

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Posted by Pamela29 June 2013 | 14h362013-06-29T14:36:50Z

Shills running the FDA

What the judge has done is refer this issue to former Monsanto lobbyists and executives that run the FDA to decide. We are all sitting on the edge of our seats wondering what they will say.

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Posted by EW Zuber19 June 2013 | 12h082013-06-19T12:08:04Z

I don't believe this

The FDA is a joke really, isn't it? What actually is their purpose, because it doesn't seem to be there to regulate or protect the best interests of the citizens of America? Glad I live in England...shame I've got to navigate the minefield in the food system when I come over. It badly lets the US down.

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Posted by Debbie19 June 2013 | 10h252013-06-19T10:25:04Z

natural or GMO

To solve this just put non-gmo on the product if it is in fact non-gmo. That makes it easy for the consumer. I look for the non-gmo project stamp when I buy a product. If it doesn't say non-gmo, I assume it is. Doesn't leave a lot of choices but I try very hard to NOT consume gmo products.

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Posted by carolyn miller19 June 2013 | 04h052013-06-19T04:05:09Z

Stock in corn

Of course the FDA is NOT going to deal with anything that will put a minus in their money belt. Many member's of the FDA have stock in corn!
The power over our foods safety should be taken out of those hands because they are failing miserably to do whats best for the people.

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Posted by Renee Louise19 June 2013 | 00h502013-06-19T00:50:29Z

FDA is run by exMonsanto lawyer

FDA is run by exMonsanto lawyer and this judge knows it. Natural isn't organic and GMO's are not natural.

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